Court name
Supreme Court of Zimbabwe
Case number
SC 66 of 2007
Civil Appeal 67 of 2006

Muswere v Brown and Another (Civil Appeal No. 67/06 ) (SC 66 of 2007, Civil Appeal 67 of 2006) [2008] ZWSC 66 (22 July 2008);

Law report citations
Media neutral citation
[2008] ZWSC 66

DISTRIBUTABLE (63)








Judgment
No. SC 66/07


Civil
Appeal No. 67/06








CEPHAS
MACDONALD MUSWERE v (1) REYNOLD MALCOLM BROWN
(2) ADRIEN BROWN








SUPREME
COURT OF ZIMBABWE


MALABA
JA, GWAUNZA JA & GARWE JA


HARARE,
FEBRUARY 15, 2007 & JULY 23, 2008









S Mandizha, for the appellant



D Mandaza, for the respondents









GARWE JA:







This appeal is against the decision of the High Court dismissing an
application made by the appellant to rescind a default judgment

granted against him on 24 February 2005 ordering, inter alia,
his eviction from an immovable property known as Green Valley of Glyn
Tor, situate in Masvingo.







The background to this matter is as follows. The respondents are
the owners of Green Valley of Glyn Tor in Masvingo (“the

property”). On or about 22 January 2003, the respondents
entered into a verbal agreement of sale of this property with the

appellant. The purchase price was agreed at $13,000,000.00. The
appellant issued two cheques each in the sum of $6.250.000.00.
The
first cheque dated 13 March 2003 was met by the appellant’s
bankers. When the second cheque dated 3 April 2003 was
presented
for payment it was dishonoured and returned with the inscription
“R/D”. The narration “R/D”
on the cheque
indicates that the cheque was referred to drawer. It was not stopped
as suggested by the appellant. As a result
of this development the
respondents instructed their legal practitioners to cancel the
agreement and demand that the appellant
vacates the property. The
appellant did not vacate contending that he was not in breach.




The respondents then issued a summons seeking the eviction of the
appellant and holding over damages. The appellant entered an

appearance to defend and thereafter filed his plea. The respondents
then filed an application for summary judgment. That application
was
set down before the High Court on 24 February 2005. The appellant
was in default on that day and consequently a default judgment
was
granted against him. He then filed a notice of appeal against that
judgment on 9 March 2005. Realizing that it is not proper
to file an
appeal against a default judgment, the appellant then filed an
application for the rescission of the default judgment
on 30 March
2006. The High Court dismissed the application for rescission of
judgment in so far as it related to the eviction
of the appellant
from the premises in question. The court, however, rescinded the
portion of the default judgment granting holding
over damages.







The appellant now appeals to this Court against the order dismissing
his application for rescission of judgment. His grounds of
appeal
are:-




  1. The learned Judge erred in upholding an order of ejectment of the
    appellant from Green Valley of Glyn Tor more particularly in
    that:-




    1. The learned Judge failed to appreciate that there had been no
      service of the notice of set down on the appellant and that
      therefore the appellant had not been in wilful default.











    1. The learned Judge misdirected herself in coming to the conclusion
      that the appellant did not have a bona fide defence to the
      respondent’s claim when it was clear that the sale agreement
      between the two parties was an instalment sale of land which
      obliged the aggrieved party to give the other 30 days notice to
      rectify the breach.











    1. The learned Judge misdirected herself in relying on two faxed
      documents which were correspondence between the appellant and
      his
      legal practitioners and therefore privileged.











    1. The learned Judge failed to appreciate the fact that in terms of r
      449(1) (a) of the High Court Rules the default judgment
      had been
      granted in error.









The real issue before this Court therefore is whether the trial Judge
misdirected herself in coming to the conclusion that there
was no
good and sufficient cause for that part of the judgment which ordered
the ejectment of the appellant to be rescinded. In
examining this
issue it will be necessary to consider whether the trial court was
correct in coming to the conclusion firstly that
the appellant was in
wilful default and secondly that he had no bona fide defence
on the merits.







I will deal firstly with the question whether the trial Judge
misdirected herself in coming to the conclusion that the appellant

had been in wilful default. It is the appellant’s claim that
he was not in wilful default because both the respondents’

heads of argument and the notice of set down had been served on a
legal firm that had never been appointed to act as his legal

practitioners’ corresponding legal practitioners in Harare.
The appellant’s legal practitioners were based in Masvingo
at
the relevant time.







It is common cause in this case that the corresponding legal
practitioners for Mwonzora & Associates of 50 Hofmeyer
Street, Masvingo, who were the appellant’s legal practitioners
of record, were Gula Ndebele & Partners of Harare. It is
also common cause that both the respondents’ heads of argument
and the notice of set down were eventually
served on Majome &
Associates
and not Gula Ndebele & Partners.







In coming to the conclusion that there was no reasonable explanation
for the default, the trial court took into account the contents
of
two affidavits attached to the respondents’ opposing affidavit.
The first affidavit was deposed to by one Richie Madyira
a legal
clerk with Gula Ndebele & Partners. He states in the
affidavit that Gula Ndebele & Partners ceased to be
corresponding legal practitioners for Mwonzora & Associates
on 20 September 2004. He received verbal notification that the new
corresponding legal practitioners were Jessie Majome &
Associates
. Following this development all correspondences for
Mwonzora & Associates was re-directed to Majome &
Associates
. He says he delivered the notice of set down which
had been served on Gula Ndebele & Partners to Jessie
Majome & Associates
.







The second affidavit was deposed to by Tendai Chaitwa a clerk at
Muzangaza, Mandaza & Tomana the respondents’ legal
practitioners of record. He states in that affidavit that on
attempting to serve heads of argument
on Gula Ndebele &
Partners
the receptionist refused to accept delivery and instead
directed him to Jessie Majome & Company who she said were
the new corresponding legal practitioners for Mwonzora &
Associates
.







Despite the contents of these two affidavits the appellant made no
effort to show that Jessie Majome & Associates were not
his lawyers’ corresponding legal practitioners. In my view,
once the respondent had established that Gula Ndebele &
Partners
had directed that all correspondence be now channeled to
Majome & Associates, the onus shifted to the appellant to
show who at the relevant time his corresponding legal practitioners
in Harare were if in
fact Majome & Associates were not.
The appellant did not do so.







The trial Judge also took into consideration a fax message sent by
the appellant to his lawyers dated 24 February 2005. The date
of
that fax is significant. It was on 24 February 2005 that the default
judgment was granted against him. The appellant of his
own volition
sent a copy of the fax to the respondents’ legal practitioners.
In that fax the appellant refers to the original
notice of
opposition and requests his lawyers to speedily lodge an appeal
against the judgment. Rather than explain why he sent
this message
if he was not aware of the set down of the matter, the appellant has
sought to have the fax excluded on the basis
that it is privileged.
This fax message was sent by the appellant himself to the
respondents’ legal practitioners for their
information. It
cannot, in these circumstances, be said to be a privileged document.







The trial Judge concluded that no reasonable explanation for the
default had been given. I see no basis upon which the trial Judge

could be said to have misdirected herself. I agree with her comments
that the fax transmission cries for an explanation. Clearly
there
has been no reasonable explanation for the default.







On the question whether or not the appellant had a bona fide
defence on the merits, the trial court reached the conclusion that he
had not discharged the onus to show that he had such a defence.
The
trial court noted that the appellant had given many versions.
Indeed, it is apparent that the appellant has not been consistent
in
his narration of the events that took place. When a letter was
written to him by the respondents’ legal practitioners
advising
him of the fact that his cheque had been dishonoured by the bank, the
appellant denied that he was in breach and stated
that it had been
agreed that the balance of the purchase price would be paid upon
transfer and that once the title deeds were made
available then
payment would be effected. In other words he accepted that the
balance of the purchase price was still due. He
did not in that
letter indicate that he had paid R5 000 to the respondent. In his
plea, however, he says he had paid to the respondent
the sum of South
African R5 000 which was equivalent to $6.000.000.00 and that it was
for that reason he stopped the second cheque
from being paid. In
other words he was saying the monies represented by the second cheque
had largely been paid. It is also clear
that although he says he
stopped the cheque, the cheque was in fact dishonoured by the bank.
The narration “R/D” on
the face of the cheque is a clear
indication that the cheque was dishonoured and not simply stopped.
The appellant therefore did
not tell the truth when he stated that he
had stopped the cheque. The appellant also seemed unsure as to how
much exactly he paid.
In his plea filed on 20 February 2004 he says
he paid $6.000.000.00 and thereafter R5 000 which was equivalent to
$6.000.000.00.
He says the total sum paid was $12.000.000.00 leaving
a balance of $1.000.000.00. He says he then paid $500.000.00 to
Zimra leaving
a balance of $500.000.00. In his application for
rescission of judgment he states that in fact he paid $6.250.000.00
by cheque
and R5 000 (equivalent to $6.000.000.00) leaving a balance
of $750.000.00.







It is also apparent that after the issue of the application for
summary judgment by the respondents, the appellant offered to pay
the
sum of $20.000.000.00. In that fax message, dated 28 February 2005,
the appellant offered “an extra Z$20.000.000.00
as settlement
to cover for (sic) the last payment which was supposed to be
Z$6.000.000.00.”







As the trial court correctly noted, if the applicant had paid the
full purchase price except for the nominal amount of $500.00.00
or
$250,000.00, he would not have made that offer. He would have
advised the respondents that the money had been paid. Instead
his
legal practitioners wrote to the respondents’ legal
practitioners stating that the balance of the purchase price was

payable only upon transfer.







The appellant’s defence is also that the sale was an instalment
sale of land and in terms of the Contractual Penalties Act
[Cap
8:04], the respondents should have given him thirty (30) days’
notice to rectify any breach. The respondents vehemently
denied in
their papers that this was an instalment sale of land. Their version
was that such a discussion never took place. They
stated that it was
the appellant himself who unilaterally decided to issue two cheques.
They had wanted the money in one lump
sum but the appellant issued
two cheques, one of which was dishonoured by the bank.







In terms of the Contractual Penalties Act, [Cap 8:04]
an instalment sale of land is a contract for the sale of land whereby
payment is required to be made in three or more instalments.
In
terms of s 7, every instalment sale of land shall be in writing.
Where such contract or a term thereof has not been reduced
to writing
the onus of proving the existence of that contract or term shall rest
on the person alleging its existence. In terms
of s 8 of the Act, no
seller may terminate the contract unless he has given written notice
of the breach to the purchaser to remedy
the breach within the period
fixed in the agreement or thirty days, whichever is the longer
period.







The court a quo reached the conclusion that there was a
dispute on the papers and that the appellant had not therefore
discharged the onus. If
my understanding of the reasoning of the
court a quo is correct, the Court appears to have accepted
that there was indeed a dispute but that the appellant had failed to
discharge the
onus of showing that it was an instalment sale of land.
This was a misdirection on the part of the court a quo. For
purposes of the application for rescission of judgment, all that was
required of the appellant was to show that he had a
bona fide
defence. It was not necessary for the appellant at that stage to
discharge the onus of showing that this was indeed an instalment
sale
of land. There would have been need to discharge that onus at the
trial, that is, if the matter had proceeded that far.







Considering all the circumstances, however, I am satisfied that the
appellant’s defence in this regard is not bona fide.
Firstly the claim is a bald one which has been raised by the
appellant at the eleventh hour. The suggestion that there was such

an agreement was only made for the first time in the application for
rescission of judgment. There was no such suggestion either
in his
plea to the main action or in his opposing papers to the application
for summary judgment. The claim that this was an instalment
sale of
land was an afterthought. It is clear there was no such agreement
and that it was the appellant who failed to pay the
purchase price of
$13.000.000.00 in one lump sum but instead split the payments. I am
satisfied, but for different reasons, that
the trial court was
correct in concluding that the appellant had no bona fide
defence in this regard.







Before concluding I need to comment on the suggestion in the
appellant’s notice of appeal as well as heads of argument that

r 449(1)(a)(d) of the High Court Rules should have applied and the
default judgment rescinded without further inquiry. I do not
agree
with this suggestion. In the first instance the application filed
before the High Court was not in terms of r 449 but in
terms of r 63.
Indeed in para 3 of his founding affidavit the appellant states that
this was an application for rescission of
judgment in terms of r 63
of the High Court Rules. At no stage did the appellant indicate that
the Court should proceed in terms
of r 449 or that the court should
mero motu rescind the judgment. I am satisfied in any event
that there was no basis upon which the Court could have proceeded
under r 449.
The judgment had not been granted in error. Well
knowing that the matter had been set down, the appellant and his
legal practitioners
failed to attend the hearing and a default
judgment was granted. There was prima facie evidence of a
breach of the agreement by the appellant and the court a quo
was therefore entitled to grant the default judgment. The suggestion
that a party to a contract must be placed in mora before
cancellation of the agreement does not correctly represent the law in
this country. Except where giving such a notice is
a condition
precedent to termination, there is no obligation on the innocent
party to place the person defaulting in mora. The absence of
a demand in such cases merely exposes the innocent party to the risk
of losing his costs if the defendant tenders
payment within a
reasonable time – Wan Winsen, The Civil Practice
of the Supreme Court of South Africa, 4 ed p 192.







I am satisfied that there is no merit to this appeal.







The appeal is accordingly dismissed with costs.











MALABA JA: I agree















GWAUNZA JA: I agree















Muzangaza, Mandaza & Tomana, respondent’s legal
practitioners